Thursday, March 02, 2006

Motion to Dismiss Made in Texas in Arista v. Greubel

A new dismissal motion has been made, this time in Texas, in Arista Records v. Greubel, in the United States District Court, Northern District of Texas, Fort Worth Division.

In his motion papers Mr. Greubel argues that:

-the RIAA's attempt to recover $750 per song, while its actual damages are only 99 cents per song, is unconstitutional;

-since 2003 the RIAA has been actively engaged in "extortive and predatory litigation tactics" and misused the Courts to "create a veil of fear designed to frighten average consumers into paying thousands of dollars in settlements to avoid prolonged litigation";

-the RIAA's pleadings are "smoke and mirrors";

-the complaint lacks sufficient specificity;

-the "distribution right" upon which the RIAA vaguely relies does not apply to electronic transmissions; and

-even if it did, the mere act of making sound recordings available online does not constitute an actionable infringement.

Motion to Dismiss Complaint (Published at Internet Law & Regulation)

Mr. Greubel is represented by:

Mudd, Charles Lee, Jr.
Law Offices of Charles Lee Mudd Jr.
3344 North Albany Avenue
Chicago, Illinois 60618
773.588.5440 (facsimile)

Browning, John G.
Browning & Fleishman, P.C.
701 Commerce St., Suite 510
Dallas, Texas 75202
214-752-4130 phone
469-227-9010 fax

Keywords: copyright download upload peer to peer p2p file sharing filesharing music movies indie label freeculture creative commons pop/rock artists riaa independent mp3 cd favorite songs


Oli said...

Ray what do you think about the motion to dismiss? does it make sense to you? do you think the judge would find it made sense and would dismiss it?

It makes sense to me however, I have noticed that the judges seem reluctant to ever dismiss these cases under any circumstances, although if one judge does then it could make the RIAA think twice next time.

raybeckerman said...

Dear oli,

I thought it was excellent.

It absolutely does make sense, and if the judge rules correctly, it will be granted, and the case thrown out.

There is only one dismissal motion of which I am aware that has been ruled on to date, so I don't see how you can have discerned a trend yet.

There is a long and clearcut tradition of what constitutes proper pleading of a copyright infringement case, and the RIAA's boilerplate -- identical in about 19,000 cases -- is not it.

Best regards,


raybeckerman said...

There was also a dismissal motion in BMG v. Conklin, in Houston, but that one doesn't really count -- it was a litigant who didn't have a lawyer, didn't fully brief the motion. Also the judge didn't say what the ruling was based on.

Oli said...

Sorry my statement wasn't based on fact it was more a broad sweeping "feeling" that the system is against everyone but the recording industry!

It is in fact good to know that what I thought was the case it not! so thanks for pointing that out! But I was also thinking of your dismissal motion with the Santangelo case - but maybe I am confused with the type of different motions.

I wonder what the RIAA's lawyers would have to say about the motion and if it is dismissed would that mean that everycase that was brought could and should be dismissed by a precedent being set? and would there be a way to appeal any decision that the court made on the motion for either party?

raybeckerman said...

The Santangelo motion is the one dismissal motion I was referring to.

There are several others in the pipleline, but we don't know their outcome yet: Maverick v. Goldshteyn, Elektra v. Barker, Arista v. Greubel. There's also one pending in Atlantic v. Andersen and another pending in Minnesota.

raybeckerman said...

As to what's binding, it's only binding if it's from an appeals court, and then it's binding on every district court within its purview. A decision from a circuit court is binding on every district court within that circuit. If the US Supreme Court says it, then it's binding on all the federal courts.

If, e.g., the motion in Elektra v. Barker is granted.... the RIAA appeals... the Second Circuit affirms... the US Supreme Court denies cert.... then the 2d Cir. decision will be binding on every district court in the 2d Cir. If on the other hand the US Sup. Ct. granted cert, and affirmed, then it would be the law.

Martin Osterman said...

But is it not possible that other courts outside 2d Cir could also rule and cite the 2d Cir case as a basis? In doing so, I would think that they would interweave things in such a way that the RIAA would soon find themselves out of litigation options.

raybeckerman said...

Dear Martin,

Yes, indeed, a federal circuit court decision would be a non-binding precedent for other other courts to consider. And in the example I gave -- Elektra v. Barker -- the precedent would be a highly persuasive one, since the Second Circuit has historically been the leader in the copyright field.

Best regards,


raybeckerman said...

If the Second Circuit held that the RIAA's boilerplate complaint was insufficient, it would not leave the RIAA without "litigation options". It would leave them with the same options they, and any other litigant, has now:

1. If you think someone is infringing your copyrights, ask them to cease and desist. If they agree, enter into a cease and desist agreement.

2. If they do not agree, and you still have reason to think they are infringers, do an investigation, collect evidence that the person is violating your copyrights, and THEN bring a lawsuit.